By Stanley Lubman
Two prominent judges have recently issued sharp critiques of China?s judicial system, leading to optimism in some quarters that long-awaited legal reforms could finally be on their way.
Shen Deyong, appointed earlier this year to his post as executive vice-president of the Supreme People?s Court, in May took the country?s legal system to task for its high numbers of wrongful convictions, blaming pressures placed on judges. Earlier this month, the head of the Guangdong Provincial High Court went even further, criticizing the continued use of a Soviet-style system in which the courts are undifferentiated from administrative agencies.
Advocates of legal reform are right to feel encouraged. The high positions of both judges and the directness of their comments suggest that higher authorities approved their views. But, as is often the case, there are caveats.
The discovery of wrongful convictions is nothing new in China, but publicity around them has grown in recent months posing a challenge to the reputation of China?s courts.
In November, media widely reported the case of man in Guangdong province who was awarded 825,000 yuan ($131,000) in compensation after serving 11 years in prison for a fraud he didn?t commit.
In April, a farmer in Henan was released after spending 12 years in prison for the rape and murder of a 13 year-old girl when the province?s high court overturned his conviction for lack of evidence.
Two cases in eastern China?s Zhejiang province have also attracted widespread attention: ?In April, the provincial high court overturned a death sentence and a 15-year prison term for two men convicted of the murder of a woman in Hangzhou after determining their confessions were coerced. And in early July, the high court reversed the 1997 conviction of five men accused of robbing and killing two taxi drivers, also after finding the men had been tortured into confessing.
The number of these cases and the flagrancy of the injustice they reveal suggest powerful reasons for reform.
In an article published in the People?s Court Daily in May, Judge Shen described?such glaring miscarriages of justice as ?an unprecedented challenge? to China?s courts, adding that ?if a true criminal is released, heaven will not collapse, but if an unlucky citizen is wrongfully convicted, heaven will fall.?? Wrongful convictions, he wrote, ?are often the result of given orders, an abandonment of principles or sloppy dereliction of duty.?? In Judge Shen?s words, Chinese judges ?face intervention and pressure from all sides,? preventing them from acting independently.
The Global Times, an English-language paper under the control of the Communist Party mouthpiece People?s Daily, reported on Judge Shen?s article in a manner reflecting approval, noting that he emphasized the need to counter the persistent influence of the presumption of a suspect?s guilt. ?A partner in a Chinese law firm was quoted as saying that the recent reversals of convictions mentioned above are ?a signal from the central authorities to actively push for judicial justice by correcting faults, and these efforts have to be strengthened in the whole system.?
The article further quoted Beijing Law School Professor Jiang Ming?an, a well-known advocate of law reform, saying ?it was rare to see so many corrections of wrongful convictions.?
It should be noted that Judge Shen?s call is not just about the courts. He is attentive to the need to mobilize other agencies in what is commonly referred to as the ?political-legal system?? police, the procuracy (prosecutors) and courts.? He was reported to have urged, in a seminar in Guangzhou, that courts must work with police and procuracies ?to safeguard judicial justice through cooperation as well as systems of checks and balances.?
He also stressed in his article that Communist Party leadership is necessary to carry out reform.
Judge Shen is more than a single voice for law reform. Zhou Qiang, appointed early this year as president of the Supreme People?s Court, has also made calls for lawyers and legal scholars to join together in the effort to reform China?s legal system.
In his own critique earlier this month, Judge Zheng E, president of the Guangdong Province Higher People?s Court, took aim at the judicial system?s basic structure.
Judge Zheng accurately described the system as heavily influenced by an ?outdated Soviet-style model that treats the courts as just another government agency? in which judges? decisions are reviewed by court superiors and the courts are financed by local governments, which can interfere with the outcomes of specific case.? He referred to pilot projects in two cities in Guangdong ?where judges are allowed to rule [sic] their own cases without seeking guidance from superiors.?
Such statements from senior judges so soon after they assumed their posts suggest change may indeed by coming. Yet there are reasons to be cautious.
Teng Biao, a lecturer at the China University of Politics and Law in Beijing, characterized Judge Shen?s article as ?a good statement,? but warned that it was ?likely to be just personal views.? Even if the courts want to change, he said, ?they remain restrained by public security organs and the [Communist Party?s] Politics and Law Committee.?
Chinese and foreigners alike must wait for further developments before it will be possible to ascertain whether progress is likely, and how soon it will appear.
However important law reform may be, the current emphasis of the leadership on economic reform will dominate policy for the foreseeable future.? Looking ahead, systemic reforms will require not only inter-agency consultation and debate, but changes in the mentality of judges and officials.
For now, Judge Shen?s words have begun to resonate with proponents of law reform, and give them a glimmer of hope for progress.
Stanley Lubman, a long-time specialist on Chinese law, is a Distinguished Lecturer in Residence at the University of California, Berkeley, School of Law. He is the author of ?Bird in a Cage: Legal Reform in China After Mao? (Stanford University Press, 1999) and editor of ?The Evolution of Law Reform in China: An Uncertain Path? (Elgar, 2012).
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